Consideration of the ground of appeal
37 The appellant contended that, for the appellant to present as being a "danger", he must pose a "high level of risk" - adopting the phrase used by Bromberg J in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; 279 FCR 1 at [54].
38 On the appellant's reading of s 36(1C), in the context of its codification of Australia's obligations under the Convention to protect persons from refoulement and the prospect of indefinite detention if the exception arises, the section constitutes a mandatory power for which a "strictness of logic" must be applied in order for a person to constitute the requisite kind of danger. On the appellant's submission, the demands of this "strictness of logic" required the decision-maker (here the Tribunal) to attribute "risk" to each of the criteria [or each criterion] that the Tribunal identified and the fact that it did not do so constituted jurisdictional error.
39 For the reasons which follow, we do not accept that the Tribunal erred in its determination that the appellant posed a danger to the Australian community under s 36(1C) of the Act.
40 First, the appellant correctly conceded at the hearing that the strictures of s 36(1C) involve a multifactorial assessment of considerations which include those identified by Tamberlin DP in WKCG at [25]-[31].
41 In WKCG, the question of whether a person was a danger to the Australian community was considered in the context of the exception to a country's obligation to afford protection to refugees under Art 33(2) of the Convention. Deputy President Tamberlin found that:
(a) The question of whether a person constitutes a "danger to the Australian community" is one of fact and degree. Regard must be had to all of the circumstances of each individual case: WKCG at [25];
(b) The person's criminal record must be considered as a whole and their prospects of rehabilitation must be assessed: WKCG at [26];
(c) Relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence(s) imposed, and any mitigating and aggravating circumstances. The extent of the criminal history (both nature of prior crimes and the period over which they took place) is also relevant: WKCG at [26];
(d) The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration, which involves a consideration of the person's previous general conduct and total criminal history: WKCG at [26] and [27];
(e) The assessment, which includes future conduct, involves a consideration of character and the possibility or probability of any threat which could be posed to a member or members of the Australian community: WGCG at [26];
(f) Once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community: WKCG at [29];
(g) Whilst the nature and circumstances of the conviction(s) will be highly relevant to the question, it is not conclusive and it will be necessary to look at the person's conduct in light of all the circumstances that have occurred up to the time of making the tribunal decision: WKCG at [29]; and
(h) It is not necessary to establish that there is a probability of a real and immediate danger of present harm - the provision seeks to protect the community from both immediate harm and harm in the reasonably foreseeable future: WKCG at [31].
42 Once it was conceded that the required assessment is "multifactorial" we do not understand how the appellant can successfully maintain the position that the Tribunal's decision was "illogical and unreasonable".
43 This is readily apparent from the Tribunal's reasoning: The Tribunal (at T[112]) extracted the relevant portions of WKCG (and thereafter adopted) its useful non-exhaustive 'list' of considerations when assessing whether a person is a 'danger to the community', namely - the seriousness and nature of the crimes and the sentences imposed (at T[129]-[134]), mitigating or aggravating circumstances (at T[135]-[136]), the period of offending (at T[137]), and the risk of recidivism (at T[138]-[141]).
44 Secondly, the appellant's contention as articulated in his submissions arises from an incorrect reading of Bromberg J's reasoning in KDSP. In KDSP at [54], his Honour considered what "danger" in the context of s 36(1C) was said to comprise:
Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a "danger" to Australia - a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636, the word "danger" in s 36(1C) means "present and serious risk" (see at [83]). Nor is any past criminality sufficient to engage s 36(1C)(b). To engage that subsection a person must have been convicted by a final judgment of a "particularly serious crime" (as defined by s 5M) and therefore be a "danger to the Australian community".
45 The appellant's contention appeared to assume that his Honour's reasoning meant that the level of risk to the Australian community which must be found to exist is a "high level of risk [of recidivism]". The appellant's counsel rightly conceded at hearing that this is not how "high level of risk" should be read.
46 Thirdly, it is clear from the Tribunal's reasons that it did, in fact, undertake the multifactorial assessment it was required to do. Contrary to the appellant's contention, the Tribunal's reasons are rational and logical.
47 The focus of the appellant's appeal was on one phrase in T[141] - namely that "there is at least a low to moderate risk of [the appellant] re-offending".
48 In isolation, this phrase may lead one to pause to consider whether, by reason of such a finding, a person could pose "a danger to the Australian community". However, care needs to be taken to understand the phrase within the context of the Tribunal's reasons as a whole.
49 Relevantly, in the context of adopting the test the appellant contends the Tribunal was required to adopt under KDSP (see T[127]), the Tribunal first considered the seriousness and nature of the crimes and sentences imposed (at T[129]-[134]).
50 In this context, and departing from the earlier Tribunal's finding, the Tribunal identified that "some" but (importantly) not all of the appellant's offending was "driven by his drug-taking": at T[129]. The Tribunal then found (at T[130]) that despite the fact that the courts had applied a wide range of sentencing and behaviour management tools, the appellant "returned to offending". In particular, the Tribunal described two occasions of violent offending (at T[131]-[132]) as follows:
131. In relation to the armed robbery and aggravated burglary convictions in 2002, the sentencing Judge related how FSKY and three others entered a house while the occupants were sleeping, wearing facial disguises. FSKY was carrying a machete, as was one of his co-offenders. The other two co-offenders carried, respectively, a sword and a handgun. A female occupant of the house woke to find the four intruders. She was told to remain still, or she would be killed. She and another female occupant were ordered to take off their jewellery and hand it over. Their telephone was cut off. One of the females was tied up. When she managed to untie herself, she was struck on the head three or four time [sic] by one of the co-offenders. A necklace and earrings were physically pulled from one of the women.
132. In relation to the 2015 offence for recklessly causing injury [(the 2015 incident)], that was a particularly serious offence because it involved FSKY injuring his then partner with the vehicle he was driving. I find, whilst perhaps not appreciating that he had injured her, FSKY knew he had inflicting [sic] some form of harm on her by knocking her down with the car. On his own evidence he got out briefly, but then re-entered the car and drove away. He did not attempt to assist her, nor call for aid. In fact, on his evidence at the Tribunal he did not have any further contact with her and found out about the extent of her injuries when he was shown photographs by the police of her broken ankle, two weeks later around the time of his arrest. The seriousness of the offence as viewed by the Courts is underlined by the fact that, on an appeal brought by FSKY, the County Court increased the sentence originally imposed by the Magistrates' Court.
(Emphasis in original.)
51 The Tribunal (at T[133]) then drew conclusions as to the appellant's state of mind with respect to the 2015 incident and his "reckless[ness]" to the "real possibility of serious injury by his actions".
52 Importantly, the Tribunal's finding (at T[141]) must be understood in the context of the whole of its reasons on the topic of the risk of recidivism. The Tribunal said the following at T[138]-[141]:
Risk of recidivism
138. When FSKY was before the Tribunal in 2018 in relation to the cancellation of his visa, the learned Member, Mr Maryniak, QC, heard evidence from Ms Elizabeth Warren, psychologist, and stated (T, p 749) at [38] of his decision:
In oral evidence, Ms Warren stated that the Applicant's risk of relapse was on the 'cusp' of low to medium or just at the high end of low close to medium. Therefore, his risk of relapse to heroin use is not insignificant. To the extent that the Applicant maintains that his offending is entirely drug-related, it was submitted by the Respondent that there is at least a low to moderate risk of the Applicant re-offending and exposing the Australian community to more criminal behaviour. The Tribunal accepts this submission and finds accordingly.
139. Mr Simmons in his most recent report (A2) wrote that FSKY:
…is aware that should he relapse, then the probability of returning to offending and the problems that would ensue with regard to his immigration status would be significant. He has the support of family and should that continue, along with any employment will go a way towards his remaining substance free….Should FSKY remain substance free, there is little likelihood he will commit further offences.
140. I note that Mr Simmons also records, based on his discussions with FSKY, that the Applicant has undertaken 'five or six residential drug related programs'. He has also undertaken a large number of courses, evidence of which was before the Tribunal, both while incarcerated and in the community, sometimes as the result of a Court order. While there was an abating of his offending in 2014 and 2015 up until the incident involving P, none of the other courses appear to have had much of an effect on preventing FSKY returning to re-offending.
141. Because Mr Simmons' most recent conclusions were qualified by the conditions of FSKY's knowledge of the potential effect on his migration status and the existence of a supportive family, both of which have not had a material effect in the past, I prefer the conclusion of the previous Tribunal that there is at least a low to moderate risk of FSKY re-offending.
(Emphasis in original.)
53 These reasons reveal a number of things: First, the Tribunal accepted the earlier Tribunal's reasoning as identified at T[138]. Secondly, the earlier Tribunal's reasoning dealt with both the "risk of relapse" into heroin use which was "not insignificant" and the risk of "re-offending". Thirdly, the Tribunal then considered the most recent report of Mr Simmons (at T[139] and [140]) and expressed concern that despite the appellant having undertaken courses whilst incarcerated and in the community, "none of the other courses appear to have had much of an effect on preventing [the appellant] from returning to re-offending". Fourthly, the Tribunal referred to Mr Simmons' most recent conclusions being qualified by the knowledge of the potential effect on his migration status and the existence of a supportive family - "both of which have not had a material effect in the past" (at T[141]), such that the Tribunal found that "there is at least a low to moderate risk of [the appellant] re-offending" (emphasis added).
54 Under the 'heading' "Conclusion", the Tribunal went on to draw together the multifarious factors and to undertake the required evaluative exercise.
55 The Tribunal said the following at T[142]:
The Tribunal is satisfied that FSKY has been convicted by final judgment of a particularly serious crime, within the terms of section 36(1C)(b) of the Act. The Tribunal has carefully considered whether the Applicant is (presently) a danger to the community. Given the number of times FSKY has had the opportunity presented to him to rehabilitate but has nonetheless re-offended, the Tribunal concludes that he is. Of particular concern to me is FSKY's evidence that, in terms of circumstances of the most recent serious offending where he recklessly injured his former partner, he was not affected by heroin. In his evidence at the hearing, the Applicant said that he had taken 'some sleeping pills' during the day. I therefore conclude that his significant heroin addiction problem was not a central factor in that serious offending. It is also concerning to me that the 2015 offence was not the first time FSKY had been convicted of offences of that nature. As set out above, in 2009 he was also convicted of the offence of Fail to Render Assistance after an Accident, and a related offence of Fail to give name and address to injured. Together with the Recklessly causing injury conviction in 2000, I consider there is some element of unwillingness of the Applicant to take responsibility for his actions when he has been directly involved in hurting people, and that is significantly concerning.
(Emphasis in original in italics; emphasis in bold added.)
56 We note that the Tribunal identified that the appellant is "presently" a danger to the Australian community. Picking up from T[140], the Tribunal noted that, despite numerous opportunities to "rehabilitate", the appellant has nonetheless re-offended. Consistent with its finding at T[129], the Tribunal considered that the appellant was not affected by heroin when he "recklessly" injured his former partner and thus concluded that "his significant heroin addiction problem was not a central factor in that serious offending".
57 The Tribunal then went on to consider the protective factors available upon release (at T[143]-[145]) and to then conclude (at T[146]) as follows:
I am not convinced that FSKY's creditable abstinence from drug-taking in detention completely removes the element of risk of re-offending, especially as it was not his major vice of heroin that was apparently a factor in his most recent serious offending in 2015 involving the injury to P. Consequently, I find there are reasonable grounds to conclude that FSKY is a danger to the community.
58 We do not consider that the primary judge erred in holding that the Tribunal's finding at T[146] was "merely remarking that the bare fact of abstinence from drugs did not remove the risk of re-offending" when the Tribunal highlighted that the appellant was not affected by heroin at the time of his most recent serious offending.
59 On this basis, the Court does not accept that the Tribunal's finding with respect to the risk of recidivism at T[141] constrained the Tribunal's ability to reach the conclusion that it did. Its reasoning was not "irrational" or "illogical". The finding of a "low to moderate risk" of recidivism will not impede a finding of "danger" - the test of "danger" is multifactorial, and as identified by WKCG and the Tribunal, it involves a complex assessment matrix (see WKCG at [26], approved by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636).
60 The nature of the past criminal behaviour is relevant, as submitted by the respondent. To isolate the bare probabilities of recidivism as constituting the relevant inquiry demanded by s 36(1C) would constitute error. By way of an illustration provided by the Minister, it would be misleading to describe one turn of a gun barrel in a game of Russian roulette as only exposing the participant to a 16.66% chance of harm (which may be assessed as a low to moderate risk in the abstract). One would, however, describe that exposure to being shot in the head as a "danger" to the person in the firing line. That would be so even if the odds were smaller because while the probability of a bullet emerging from the gun may be low, the consequence of the gun firing a shot to the participant's head is catastrophic.
61 As identified by the respondent, the appellant's complaint regarding the Tribunal's reasoning at T[141] involves a conflation of the Tribunal's adoption of the earlier Tribunal's assessment of the risk of recidivism ("low to moderate") for a particular purpose, on the one hand, with a broader inquiry as it pertained to the concept of "danger", on the other hand. This approach is entirely misconceived and the primary judge was correct in so holding at J[71]:
I do not accept the applicant's submission that the Tribunal's reasons equate a "low to moderate risk" with the "high level of risk" test. The "low to moderate risk" finding was made about the applicant's risk of re-offending, in the context of the Tribunal considering Mr Simmons' evidence. This was but one factor the Tribunal considered, being a constituent part of the overall assessment of danger. As noted above, the Tribunal also considered, for example, aggravating circumstances surrounding the applicant's offending; the length of the applicant's criminal history; and the perceived ineffectiveness of previous drug rehabilitation programs, employment and accommodation [from the grounds of review or in their reasons].
62 The appellant submitted, as an alternative argument, that after the Tribunal's "low to moderate" finding which was only concerned with recidivism (and not an overall risk/danger matrix), the Tribunal was required to identify and assess, by reference to the other factors, how the level of risk then adjusted up or down to arrive at an ultimate level of "danger to the Australian community". The appellant claimed that there was an absence of "evaluation" and, it seemed, reasons.
63 The appellant contends that the point is not new; the Minister disagrees. The Court did not have before it the transcript of the hearing before the primary judge.
64 Any party seeking to raise a new ground on appeal may only do so with leave on the basis that the "interests of justice" demand it: O'Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319; Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [93]-[94]; Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79].
65 Given the inability for the Court to determine, as a matter of fact, whether this argument is new, the Court nonetheless is of the view that the argument is without merit because it proceeds on the false premise that the Tribunal was bound to articulate expressly how the other factors increase the level of "danger" beyond the level of risk articulated with respect to recidivism. Whilst it is accepted that the absence of reasons may constitute jurisdictional error, here there was no such requirement to give them because there was no requirement to conduct the purported additional "risk" adjustment rating exercise. An intrinsically evaluative task, such as this one, is not susceptible to a great explication of the calibration of risk up and down according to each factor. We accept the submission of the respondent that the decision-maker's task, in this context, does not involve "moving discs on an abacus" but rather comprises a "melting pot" in which all factors, by instinctive synthesis, are given consideration.